Brady Center: The Second Amendment Threatens All Gun Laws


A story in Capitol Weekly, which covers California politics, speculates about the fallout from a Supreme Court decision in D.C. v. Heller overturning the District of Columbia's gun ban. Oral arguments in the case are scheduled for next month, with a ruling expected by the end of June. Sam Paredes, executive director of Gun Owners of California, is excited:

Any definition of the Second Amendment as an individual right is going to open up all kinds of legal avenues for us to overturn gun laws. We will change our focus from lobbying to legal action because the Legislature will be neutered. Any time they sponsor legislation we think is unconstitutional, we will challenge it.

Paredes mentions California's bans on "assault weapons" and .50-caliber guns as possible targets. But Robert Levy, the Cato Institute legal scholar who bankrolled the case, injects a note of caution:

"It lays the framework for challenging gun laws nationwide," Levy said. "It's a necessary step," he added, but not sufficient on its own. Lower courts would still need to rule that the case applied to state laws, he said, though it is likely they would; in almost all cases, courts have found that the Bill of Rights applies to state laws. Even then, he added, courts may still find that some types of guns could still be regulated, such as so-called assault weapons.

Knowing that he is supposed to disagree with anything Levy says, Dennis Henigan of the Brady Center to End Gun Violence takes the opposite position:

Bob Levy has a very strong vested interest in making statements like that. He wants to make this case seem as unthreatening as possible. If you try to pin these guys down on which guns laws they think are consistent with the Second Amendment, they won't tell you.

So here we have a Second Amendment advocate conceding that some forms of gun control could be found constitutional even if the courts recognize an individual right to keep and bear arms, while the gun control advocate argues that every firearm regulation is threatened. I love it. Here's something else that surprised me:

Normally considered liberals, Justices David Souter and Ruth Bader Ginsburg are both sympathetic to "reasonable gun rights," [gun law expert Irwin] Nowick added. A narrowly crafted individual right could win 7-2, he said.

Which reinforces Levy's point that a victory in D.C. v. Heller would be just the beginning of figuring out which gun laws are consistent with the Second Amendment. As Dan Polsby put it in reason back in 1996, the courts will finally have to treat the Second Amendment as "normal constitutional law." Last year I welcomed the ruling the Supreme Court is now reviewing, the federal appeals court decision declaring the D.C. gun law unconstitutional.